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Volume 1.2
April 2003

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Robert Blair Kaiser: A Letter from the Editor
 
THE CHURCH COMES OF AGE
 
Jim Bowman: How to Preach
 
José Ignacio González Faus, SJ: Memoria Subversiva, Memoria Subyugante: Présentación de Jesús de Nazaret (Español)
 
Subversive Memory, Captivating Memory: Presenting Jesus of Nazareth (English)
 
Bea Scott: Archbishop Oscar Romero: A Saint for the Rest of Us
 
José Ignacio González Faus, SJ: Memoria Subversiva, Memoria Subyugante: Présentación de Jesús de Nazaret (Español)
 
Subversive Memory, Captivating Memory: Presenting Jesus of Nazareth (English)
 

COMPANIONS
 
IN MEMORIAM: BOB HOLSTEIN
 
Robert Blair Kaiser: Rest in Peace
 
John Baumann, SJ:
Homily (English)
Homilía (Español)
 
Robert M. Holstein, Jr.: Message from Holstein
 
John Lounibos: About Holstein

INTERRELIGIOUS DIALOGUE
 
Paolo Dall'Oglio, SJ: In Praise of Syncretism
 
John D. Gerken: Priests: So Many Then, So Few Now
 
MEDIA AND CULTURE
 
Donn Downing: A Very Small Obsession & Just Who is Walter Ong?
 
Graciela Ramsay: Movie Review: The Crime of Father Amaro
 
Gaston Roberge, SJ: The Globalization of Terror and The Terror of Globalization

PAPACY
 
Eugene C. Bianchi: If I Were Pope
 
POETRY
 
Louis Miles: communal farming
 
H.R. Stoneback: "Shock and Awe"
 
ROME DIARY
 
Robert Blair Kaiser: Rome Diary Index
Latest Chapter
 
SEX
 
Thomas Monteleone, Jason Berry, Geoff Cahill, Jack Florence: Four Responses to "On Addressing Sexual Abuse"
 
Paul Kelly: A Paul Kelly File
 
And for a subtle reminder where the Vatican stands on all this, click here

VITAL SPEECHES
 
Daniel C. Maguire: The Voice of the Faithful in a Clergy-dominated Church
 
WAR AND PEACE
 
Leonardo Boff: Guerra massacre (Português)
Guerra masacre (Español)
War as a Massacre (English)
 
Brian Coyne:  Is This the Big Religious Question of Our Time?
 
José Ignacio González Faus, SJ: De «Occidente» al «Lejano Oeste»: Réquiem por la Razón (Español)
 
From the West to the Far West: A Requiem for Reason (English)
 
Robert Blair Kaiser: War's Holy Rhetoric
 
Bruce Kent: Christianity is not about power...


 

We had four major responses to an article in the last issue of Just Good Company “On Addressing Sexual Abuse.” The first is from Tom Monteleone, the second from Jason Berry, the third from Geoff Cahill, and a fourth by Jack Florence.

Homosexual Priests: A Fishbone Caught in the Church’s Throat

Tom Monteleone

Perhaps no other debate, apart from women’s ordination, has divided the Christian community as much as that of the moral legitimacy and status of the homosexual Christian within the Christian community. The measure of controversy is cogently put by Robert Nugent and Jeannine Gramick who state: “Homosexuality may be compared to a fishbone caught in the church’s throat that the church can neither eject nor swallow entirely.”

In October of 1997, the American Bishops’ Committee on Marriage and Family attempted to give a pastoral response to the concerns of the parents of homosexual children in issuing the pastoral message entitled, “Always Our Children: A Pastoral Message to Parents of Homosexual Children and Suggestions for Pastoral Ministers.” The document was bold in stating that “sexual identity helps to define the unique persons we are." One component of our sexual identity is sexual orientation. Philosophically and theologically the document affirmed the “dignity of our total personhood which is more encompassing than sexual orientation.” At the same time, it did not give serious consideration to the moral imperative of the implications of such an affirmation.

To affirm the dignity of personhood as an abstract universalism ignores the particularity and diversity of people in concrete contexts. We can easily try to identify something that is the same in all persons which risks and loses sight of difference and devalues that which appears as “other” to the norm. If persons have an inherent dignity, they are worthy of respect as integral beings. The first moral imperative is to respect individuals as autonomous. Emmanuel Kant argued that that every human being is absolutely valuable as an end in itself. To respect persons as ends in themselves is to relate to them as valuable in themselves, to treat them as an absolute value, not just contingently and conditionally valuable. A human person whose dignity is of ‘unconditional and incomparable’ worth means that no one is to be subordinated to another person’s agenda or the agenda of a particular institution be it religious or secular.

The document affirmed that “the teaching of the Church makes it clear that the fundamental human rights of homosexual persons must be defended and that all of us must strive to eliminate any forms of injustice, oppression, or violence against them.” Quoting from the Catechism of the Catholic Church (#2358), It reaffirmed that homosexual persons “must be accepted with respect, compassion, and sensitivity,”

Five years later, this pastoral statement lies, as Robert Nugent and Jeannine Gramick have put it, like "a fishbone caught in the church’s throat that the church can neither eject nor swallow entirely.” First came the suppression of the pastoral work of Nugent and Gramick on the allegation that that their writing and teaching was morally ambiguous, followed by the statement of Cardinal Ratzinger on homosexuality as “intrinsically disordered” based upon the Vatican’s theology of creation and the scholastic philosophy tradition of “natural law.”

The unraveling of repetitive clergy sexual abuse, particularly of male children and adolescents, the bought silence of cover-up and conspiracy of bishops, has clearly eroded the moral authority of the American episcopate. And it is my clear impression that we are experiencing the moral backlash of a confused and bewildered religious institution that is tempted to grasp at a theologically violent solution as a quick fix to complex and difficult questions.

Some members of the hierarchy would like to exclude from seminary all men who are gay and, worse they say that gay men can be neither truly celibate nor proper ‘images’ of God because the homosexual (dis)orientation is objectively disordered. What is this but theological violence?  Jon Fuller S.J, (who is also an M.D.) writes in his December 16, 2002 article, ‘On Straightening Out Catholic Seminaries’ in America magazine, that “experts have repeatedly pointed out that the sexual abuse in question – pedophilia and ephebophilia – are functions of arrested sexual development not of a particular orientation. [This] is misleading and diverts attention from the real causes of the problem.” Fuller notes that while these strong assertions – on the homosexual (dis)orientation as objectively disordered – should be no surprise to those familiar with the church’s longstanding official teaching on ‘homosexual acts, the assertion by Joaquin Navarro Valls, and others that “persons with a homosexual inclination [i.e. orientation] just cannot be ordained” is an example of an increasingly harsh stance being taken towards the homosexual orientation itself. The proposal of such an impoverished theology flies in the face of a creation theology of inherent human dignity and a sacramental theology of baptism which affirms that in Christ Jesus we have all become “sons [and daughters] of God and heirs of heaven.” St. Paul’s ‘body of Christ’ includes everyone.

In my opinion, the article by Peter Timmons “On Addressing Sexual Abuse” and the response of Samara Wark to Timmons’ questions, posted in the first volume of the cyberjournal “Just Good Company,” completely misses the boat in its fundamental assumptions of the link between same-sex sexual identity, sexual orientation; same-sex friendship, bondedness, and expressions of intimacy, and pedophilia and ephebophilia.  I would have to agree with Timmons when he says of sexual abuse by the clergy in his opening statement, “ I admit to having considerable difficulty identifying, analyzing, and assembling all the building blocks.” In essence, he is gazing at the wrong building. He offers us bits of theological wisdom such as “I do not believe in the creation of Adam and Steve,” or later, on the “thorny” issue of homosexuality, offers his sociological observation that “my own pastoral experience indicates that homosexual men are far more preoccupied with genital activity than is the average heterosexual.” In his gesture of love-the-sinner and hate-the-sin-compassion, he concedes that he is not suggesting that ALL homosexuals, clergy or lay, are “potential abusers,” but he surely implies that they wrestle with a mighty internal struggle to contain their impulses. He makes a final personal plea for “authoritative, objective replies” to his questions. I would suggest that he begin by reading the recommendations in the bishops pastoral statement to “church ministers” to “avoid stereotyping” and to “strive first to listen,” and to “learn about homosexuality and church teaching so that your preaching, teaching and counseling will be informed and effective.”

Samara Wark, in her response to Timmons, admits that her opinions are personal. Espousing a little eastern wisdom, she says, ” I think that many individuals are in or have been in or will be in same-sex relationships because their soul insists on “correcting itself and healing itself” in any way possible.” These poor same-sex fellows keep looking for their other half, searching for their “lost pieces” as she puts it. She is less concerned with “homosexuality as a disorder” and more concerned about their soul-journey as she notes, “I don’t try to figure it out but rather to observe the dynamics of its functioning.” The its seems to refer to some kind of universal dynamic in this species whom, in our social construction of deviance, we call ‘homosexual.’ In her attempt to give a positive spin to the manifestations of homosexuality, Wark affirms that “abuse is about power” and suggests that “homosexuality and its urges, would find itself in consensual relationship, in mutuality.” However, a few paragraphs later she asserts that ”when talking about homosexuality and sex abuse, you cannot know what is at the bottom of the barrel until you start listening to those who have been abused, and to their abusers.” She would seem to imply that those who have been sexually abused by male clergy are in the best position to identify the psychological profile and social pathology of their abusers.

If we are to ‘straighten out’ our seminaries, it should not be by developing an impoverished theology that espouses a second “ordo” of creation which is fundamentally flawed, can never ‘image” God, and can never contribute to the good of the person or society. Rather than focusing on sexual orientation as the paramount issue, the cleansing of the church would better focus its attention towards seeking candidates who, as one psychologist put it, manifest the capacity for relational integration. Fuller’s article in America notes that some religious orders have policies explicitly indicating that gay applicants can be admitted. “Attention is more appropriately directed towards assuring that all members be integrated, healthily transparent, generous and respectful of (and be able to live and work with) persons different from themselves.”

He further suggests that the current drive to exclude gay seminarians could return seminaries to an unhealthy psychological environment, “one that promotes secrecy, duplicity, repression and homophobic attitudes and behaviors’ intended to prove that one is heterosexual.”

If the policy of Cardinal Anthony Bevilacqua of Philadelphia, which bars any homosexual-oriented person as a candidate for the priesthood, even if he has “never committed a homosexual act,” becomes Vatican policy, this would intensify the fundamentalist Catholic anti-homosexual view which has long gripped the church and its begrudging attitude toward the extension of civil rights and opportunities to homosexual persons. Characterizing the homosexual “orientation” as deviant (many theologians perceive it as morally neutral, as a ’given,’) flies in the face of a moral theology which presumes the freedom to choose. One simply does not choose one’s genetic, hormonal, or psychological orientation.

It is time for the institutional church to challenge its fundamentalist interpretation of Sacred Scripture and develop a more cogent theology – one which largely focuses on Christ’s teachings and the call of the Gospel to create a more inclusive community family of faith.

Tom Monteleone, LICSW, has worked in the field of mental health as clinician, director of a treatment program, instructor, and as a director of training for the Massachusetts Department of Mental Health. He is a member of Dignity, the national organization of GLBT Catholics and writes on spirituality and sexuality.


The Gay Priest Culture

Jason Berry

This note concerns Peter Timmins's commentary about homosexual priests. The questions he raises are fundamental to a rational discussion about the issue, yet such a conversation in the politically correct provinces of the media today is hard to come by. For what it's worth, I am slightly to the left (if such metaphors have meaning) of Fr. Timmins in a resistance to calling homosexuality a disorder.

I do think there is a great deal that science has not discovered about sexual orientation, though from my own research and writing in the field, I find the standard news approach to gay culture almost schizophrenic: gay men are cast as victims of homophobia, or sleek trend-setters of the popular culture. There is a third view, from the ultraright, of decadent and corrupt militant homosexuals -- a demonized view. I'm not sure what it will take for the reporting and commentary on the gay priest culture -- and the fact that most of the 1800 priests reported for abusing children molested teenage boys -- to examine the complicated middle terrain between victims and trend-setters.

I should add that I have some very good priests who happen to be homosexual, and a great many priests of Timmins's generation who feel betrayed by the transformation of the priesthood into what Fr. Donald Cozzens's calls "a gay profession." In a 1992 book, "Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children," I devoted several chapters to issues surrounding homosexuality in the priesthood, and called the phenomenon "the gay priest movement." In the years since then, though the book has done well and I've had more than the requisite 15 minutes that Warhol said we all would get, I haven't found my approach to the topic embraced by the mainstream media. Perhaps other journalists think the notion of a "movement" within the church, within the priesthood, centered on gay men, implies an organizational dynamic impossible to sustain. I take no pleasure in saying this, because with a background in civil rights I feel a great empathy for gay people and the bigotry they have endured. I suspect that science will one day confirm that many gay people have their orientation programmed in utero, with no choice over their homosexuality. That raises enormous questions about free will, and the prohibition on genital mechanics at the root of the church's moral teaching.  All that said, nevertheless, a sexual corruption of the priesthood has set in, beyond the abuse cases, as witnessed in the reports of so many priests with AIDS, the pornographic chat sites, the personal conflicts of bishops exposed through civil litigation. I suspect many gay priests would say, well, look at the scandals coming out of our brethren who have done things with women. What's the difference? That's only one of the questions one could add to Peter Timmins's list. I don't have all the answers. But in trying to understand the questions, I do think that the only solution to rejuvenating the priesthood is allowing married clergy to serve alongside those who choose the celibate path.

Jason Berry, who lives in New Orleans, is the author of And Lead Us Not Into Temptation, the first major book on clerical sex abuse in the U.S. and of a forthcoming work on the sex abuse crisis of 2002, in collaboration with Gerald Renner.


            And here's an Australian, legal take on the question – a
            demonstration that one's cultural conditioning has a major
            effect on how we think about gay priests.

The Paedophile in a Religious Institution
A Paper on the Legal Perspective of Liability 2002

Geoff Cahill

The original article on this subject was first published in the Australian LAW SOCIETY JOURNAL: Vol.31, 1993)

THE WRITER

Geoffrey Cahill was of the Catholic Faith (educated at Waverley College, Christian Brothers). He held positions as the inaugural NSW Commissioner for Equal Opportunity, inaugural Chairman, NSW Government and Related Employees Appeal Tribunal, and a NSW ALP General Secretary. He was for many years a solicitor with his own legal practice. He filed one of the first civil actions in Australia against a religious institution concerning sexual abuse, and he has been involved with over fifty similar actions. He counselled victims in this field. Mr. Cahill died following a heart attack in January 2003.

(The information provided in this Paper is of a general nature. It is not intended to apply in the situation of any particular case and it should not be relied upon. Any such individual case will require separate legal or other appropriate advice having regard to the individual circumstances.)

PREAMBLE

This is a general overview of some aspects of the liability faced by religious institutions arising from sexual abuse cases. It is an update from the original Paper which was produced in the NSW Law Society Journal (vol. 31, 1993). Its initial purpose was to alert Religious Institutions to the criminal and civil liability they faced, and to offer positive "Safe Guard" guidelines for consideration. It was also designed for the general information of plaintiff solicitors.

It was sent to the bishops of various denominations to encourage the formulation of "Protocols" for dealing with sex abuse within their own institutions. It reflected the perception that many religious institutions had failed to recognise the grave legal risks involved. It was directed at the protection of corporate liability. It seemed to be a message more readily grasped than compassion.

The emphasis was directed at the most prevalent serial offender, the male homosexual paedophile. The Paper can be also applied to most situations where there is sexual molestation of a minor. It looks at the perspective of a Priest and member of a Religious Order. But it can also apply to an employee of an institution for whom the institution may be vicariously liable.

The statutory references mainly involve New South Wales law and, while there may be certain legislative differences in other States, this Paper provides a general overview.

BACKGROUND

When the original Paper was published in 1993, I stated that the then current situation was the "tip of the iceberg". Prior to this, it had been a period of considerable "head in the sand" apathy, evasion and ignorance.

Since I first filed an action against a religious institution many more damages suits have followed in courts all over Australia. The persistent deluge overwhelmed the compliancy of religious institutions. The public revelations of the paedophilia enquiry of the Royal Commission into the NSW Police Service enhanced the broad community awareness on the issue of paedophilia.

By 1996 the Catholic Bishops had produced a protocol they called "Towards Healing". It is a document which should have required constant transparent review and an opportunity for broad input by the Laity. It needed a strict authoritative regime of compliance to ensure that the policies of the protocol are rigorously applied. It is clear that the Church should have shared the development of policy and implementation with the Laity. In this way, the Church would have properly shared the responsibility rather then making a rod for its own back. Besides, and the most striking point, is that it has been the children of the Laity who have been the victims.

It has long passed the confines of the Catholic Church. The incidences of abuse in the Church have created a volatile issue of broad community concern. An issue that demands accountability. Gone are the days of the veil of secrecy, the overriding unaccountable authority of the Church and the confused generated feelings of disbelief, false shame and fear of public exposure by victims. Governments and their Agencies are becoming more inclined to lift the veil of institutional unaccountability. Legislative reform is likely to follow any foot dragging by Religious Institutions.

The experience of the North American Catholic Church is relevant to Australia. The same relative number of sex abuse complaints have already occurred in the Australian Church. The same critical environment confronts the Australian Catholic Bishops. The public voice of the Laity, and finally His Holiness, forced the issue in America. It resulted in the determination of the Norms by the American Conference of Bishops held in Dallas, Texas, USA, on 15 June, 2002 (see later discussed). The Norms resulted in a power sharing decision which will have a far reaching effect in the Church throughout the Western World.

The Australian Catholic Bishops have the option of seizing on the initiative by expeditiously adopting and implementing the principles established by the American Norms. Alternatively, they can wait until the public clamour of the Laity and the community at-large also involves the intercession of His Holiness or Governments.

THE HOMOSEXUAL PAEDOPHILE

The profile of the homosexual male paedophile is a person who snares virtually hundreds of victims. A foremost authority on the subject, Professor Nathaniel McConaghy (who practises as a consultant psychiatrist in Sydney) states in a paper published in 1993-

"Most homosexual pedophiles were single and had been exclusively attracted to male children since puberty. The victims were usually strangers or casual acquaintances; their main age was 10 years. Almost all homosexual pedophiles ( and hebephiles) who consulted me gave similar histories. They commonly sought victims in pinball parlours or other situations where young people congregated. Typically they were usually of average intelligence or above, yet were totally disinterested in social as well as sexual relations with adults. Possibly to avoid detection, the offence was rarely repeated with the same victim unless they were able to form an emotional relationship with a boy, which many wished to do. Most gave a history of stable employment. Their offences usually commenced in adolescence." ("SEXUAL BEHAVIOUR: Problems and Management", Plenum Press, New York 1993, at pages 309-10).

Professor McConaghy draws attention to the fact that homosexual paedophiles indicated that they were "less guilty" about their deviant urges and behaviour than the heterosexual paedophile. It is most significant that it is the homosexual paedophiles who are "most likely to reoffend". This is confirmed in the studies and experience of Professor McConaghy (at page 312: see also his reference to the authorities of Freund, Heasman & Roper, 1982; Marshall & Barbaree, 1990; and Quinsey, 1986).

This shows that most homosexual paedophiles in religious institutions would have had that predisposition at the point of entry into the institution. Certainly, the nature of the institutional environment provides an ideal base for the paedophile with its secure economic and protective support system. It also provides opportunity, with the gloss of that unique blend of authority, trust and religious mysticism which veils the deviant intention. At the same time it enhances the prospect for sexual abuse. It also gives a much greater scope to develop a more lasting emotional relationship with a boy.

CRIMINALITY

THE PERPETRATOR : At the lower end of the scale of offences which would most likely be committed are those of "indecent assault" (section 61E (1A), Crimes Act 1900 (NSW) ) and "an act of gross indecency" (section 78Q). The element of indecency is conduct of a "sexual overtone" when it is such that "ordinary people would so describe it, in the light of prevailing standards of morality" (see Criminal Law, Peter Gilies, Second Edition, 1990 at 564, and ingredients of assault at pages 562-4: reference to Court [1989] 1 A.C. 28 at 46,48).

Section 77 precludes consent as a defence for victims under 16 years for indecent assault, and section 78R precludes consent as a defence for victims under 18 years for an act of gross indecency.

However, homosexual intercourse (defined under section 78G, and which includes anal penis penetration or the introduction of the penis into the mouth) on a boy under 10 years provides for a penalty of 25 years penal servitude (section 78H), or attempted such intercourse 14 years penal servitude (section 78I); and such an offence on a male person between the ages of 10 and 18 years carries a penalty of 10 years penal servitude (section 78K). Consent is not a defence for these offences (section 78R).

There is also a distinct likelihood of similar fact evidence being available arising from any previous conviction of an accused for similar conduct in past offences.

THE INSTITUTIONAL: There are certain areas of conduct by those in various levels of authority in a religious institution which may give rise to the commission of a crime. For example, where there is actual knowledge that a member has committed a paedophile offence, and this offence is either concealed and/or the paedophile is placed in an environment where the offence can be repeated, may lead, in appropriate circumstances, to those persons in authority being guilty of the old common law offence of being an accessory either after or before the fact (see now sections 346 and 347, Crimes Act 1900 (NSW); penalty of 5 years penal servitude at section 350; see also discussion on complicity in Gillies, 2nd Edition, at pages 761-768 and Ch.7).

Furthermore, the elements of criminal conspiracy at common law "...in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means" (leading English case Mulcahy v. R. (1868) LR 3 HL 306 at 317 per Willes J.) may apply, although difficult to prove, in certain circumstances. Alternatively, there could be cause to examine the applicability of the indictable common law misdemeanour of attempting to pervert the course of justice or the more provable indictable common law misdemeanour of misprision of felony (the omission to disclose the commission of a felony to the appropriate authorities: section 316, Crimes Act 1900 (NSW) ).

The immediate responsibility of authorities in religious institutions are the statutory mandatory reporting requirements under the Children and Young Persons (Care and Protection) Act 1998 (NSW). This Act demands that (section 27) -

* a person who, in the course of his or her professional work or paid employment delivers health care, welfare, education, children's services, residential services, or law enforcement, wholly or partially, to children, and

* a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, education, children's services, residential services, or law enforcement, wholly or partly to children, and

such a person shall as soon as practicable report to the Director-General (Department of Youth and Community Services) if he or she has reasonable grounds to suspect that a child is at risk of harm.

The type of statutory "harm" is defined (section 23) to include where current concerns exist for the safety, welfare or well-being of the child or young person because of the presence the following circumstances:

* the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated

* the caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm.

The person making the this mandatory report is protected ( section 29 ) against a breach of professional ethics or standards of professional conduct; liability for defamation; civil malicious prosecution or conspiracy actions; identification of the person making the report and such person can neither be compelled to give evidence of its contents or produce the report in any proceedings (other than care proceedings in the Children's Court).

A summary of the child protection responsibilities is found in the "Interagency Guidelines: Child Protection 2001" produced by the NSW Child Protection Council, level 4, 44 Kent Street, Sydney 2000, (Telephone: 02. 9286 7276: or order from the NSW Government Information Service on 02. 9743 7200)

These statutory mandatory reporting obligations are sufficiently board in nature to encompass most circumstances that would apply to a Priest or Religious in the Catholic Church. Further, the common law and the statutory criminal code will apply to every situation which arises from a cover up of sexual abuse in the Church or a Religious Order.

COMMON LAW LIABILITY

THE ISSUE: The issue is whether a duty of care was owed to the category of person that the victim represented, whether there is a breach of that duty and whether this breach caused damage to the victim?

THE VICTIM: The kind of victim who is likely to seek compensation is any school boy, altar boy or other boy who could foreseeable come within the contact of a member of a religious institution. It may include social, sporting or other such environments. It may be the child of a cleaner or other employee who accompanies a parent to work. However, in addition to the primary victim, an action may be available to a secondary victim. A secondary victim may include the mother, father or a family member of the primary victim. It could arise from the "emotional shock" (a legal term) of being informed that a family member had been sexually abused by a trusted member of a religious institution.

THE INSTITUTION: Each institution will have its own rules and manner of superintendence over its members. These members will usually be under some form of control and supervision of such bodies as a Religious Order, Society, Diocese or Church under the authority of a Superior, Bishop or other senior position. Consideration should be given to the nature of the member's attachment to the institution and the geographic and other circumstances of the abuse.

THE INSTITUTION'S LEGAL ENTITY: Certain religious institutions have sometimes formerly identified behind a veil of a confusing number of corporate, organisational and authoritative entities. It is an initial legal skirmish employed by some religious institutions to avoid liability (as if by avoiding the correct legal entity it is tantamount to providing a moral absolution).

There will be a designated legal entity by which the institution can be sued. It may first assist to arrange a property search of the premises on which the member of the institution was placed when the sexual abuse occurred. This entity may be an incorporated body registered under the Companies Code or under a prescribed statute. For example, in New South Wales when examining Roman Catholic institutions, consideration might be given to the Roman Catholic Church Trust Property Act, 1936 and the Roman Catholic Church Communities' Lands Act, 1942. The current publication of the Catholic Church entitled "The Official Directory of the Catholic Church in Australia" will be a useful guide to a proper defendant (Produced by the Australian Catholic Bishops Conference, telephone 03. 5244 3680).

It is the author's view that the Catholic Church and their Religious orders, as well as other Christian Churches and Orders, should publicly, or by law, designate a "Nominal" or "Proper" Defendant whereby the proper entity is revealed for the purpose of any legal proceedings. In many such proceedings the issue is not one of fact (that the sex abuse occurred). It should be appreciated that these legal technicalities of evasion do not mix with the openness that should exist.

RECOGNISABLY PSYCHIATRIC ILLNESS: In circumstances where an action is based on psychiatric damage, it is necessary to establish that the breach in the duty of care caused a "recognisable psychiatric illness", and not merely normal emotion, grief or distress (see leading English cases Hinz v. Berry [1970] 2 QB 40 at 42-3 per Lord Denning MR; McLaughlin v. O'Brian [1983] 1 AC 410 at 431 per Lord Bridge; Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 318 per Hidden J., at 355-6 per Parker LJ., at 365 per Stocker LJ., at 401 per Lord Ackner, at 416 per Lord Oliver, and leading Australian cases Jaensch v. Coffey (1984) 155 CLR 549: Swan v. Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 185 per Samuels JA, at 195 per Priestley JA). It does not matter that the illness has healed or is expected to heal before proceedings commence (Swans Case at 199 per Priestley JA: this is a case where relief was granted to a plaintiff for more than ordinary grief rather than a recognised psychiatric illness). An example of a recognisable psychiatric illness which is common to victims of sexual abuse is the condition known as "post traumatic stress disorder" which may include, among other symptoms, such elements as avoidance of issues relating to the abuse, hyper-arousal, continued anxiety and the like. There is much more involved in the psychiatric damage which can be caused to a victim. It is not intended to review this aspect only to state that it is a matter mainly demonstrated by medical evidence.

DUTY OF CARE: Does an institution owe a duty of care for the sexual abuse perpetrated by one of its paedophile members on a boy under the fealty, trust or likely involvement with the institution?

There are a number of considerations in response to this question. The fact that the brand of violence associated with sexual abuse has been, and continues to be, perpetrated by certain members of religious institutions is known and acknowledged by most institutions (for example, see "Violence and the Church -Its Time to Talk", Rev. Father John Usher [Director, Centacare Sydney], address to Priests and Pastoral Associates, Brisbane Catholic Archdiocese, on 21 October, 1992).

The nature of the role by the majority of the members of a religious institution in the community at large provides a much wider scope for contact with broad sections of the community in virtually all possible situations. This means that the duty of care can extend beyond the limits of a particular religious community into the other broader areas which can foreseeable be affected by the involvement of a member of an institution. The institution would either know, or ought to have known, that a particular member had homosexual paedophile tendencies.

There would be a duty on the institution to give notice and warn those that could be affected by such paedophilia. There can also be a duty directed at the institution to set in place a realistic scheme to detect the danger, isolate it and remove its menace. The omission to take appropriate measures in devising a safe system will leave the institution vulnerable for compensation to the victims of sexual abuse (and possibly their families as well). It will also have a bearing on the extent of the damages awarded.

FORESEEABILITY: The question is whether the victim was foreseeable a member of a class of persons to which the Institution owed a duty (Farrugia v. Great Western Railway Co. [1947] 2 ALL ER 565 at 567 per Lord Green MR). For example, was there a "real risk" of psychiatric damage to the victim in circumstances which would "occur to the mind of a reasonable man" in the position of the institution which would not "brush aside as far-fetched" (Overseas Tankship (UK) Ltd v. Miller Steamship Co td (The Wagon Mound No.2) [1967] 1 AC 617 at 643 per Lord Reid; see also in Australia Jaensch v. Coffey (1984) 155 CLR 549 at 552-3 per Gibbs CJ. at 560-62 Brennan J, at 581 per Dean J, at 611 per Dawson J.). It is only necessary to foresee the class of injury (psychiatric damage) rather than the particular illness (Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 390 per Barwick CJ, at 392 per McTiernan J, at 393 per Menzies J, at 402 per Windeyer J, at 410-12, 414 per Walsh J.) It is also not necessary to foresee the extent of the psychiatric damage (see Nader v. Urban Transit Authority (1985) 2 NSWLR 501).

It will be appreciated that in McLoughlin v.O'Brian [1983] 1 AC 410 at 432 Lord Bridge stated that:

"...the judge should receive the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect, and apply to that the appropriate legal test of reasonable foreseeable as the criterion of the defendant's duty of care."

PROXIMITY: Was there a proven physical nearness and closeness in the causal chain which produced the damage to the victim? This proximity combines with the elements of the victim being of a class for which a claim should be recognised and the means by which the damage was caused (see the proximity approach applied by most judges of the Australian High Court following Jaensch's Case to a joint judgement in Gala v. Preston (1991) 172 CLR 243)

BREACH: Would a reasonable man in the shoes of the institution have acted as it did in this case? Did the institution take reasonable precautions that would reasonably prevent the kind of offence committed on the victim? Certainly, if the institution possessed knowledge about perpetrator's paedophilia, a reasonable act would have been to ensure he did not make contact with any young person, or if contact had been made to take action to separate him from such contact and, in any case, give notice and warn those in danger of damage (see Lord Russell in McLoughlin v. O'Brian [1983] 1 AC 410 at 429:a reasonable person in the shoes of the tortfeasor). A breach of duty may occur even if a safe system is in place, if that system is seen to be inadequate to have met the situation leading to the sexual abuse.

CAUSATION: The High Court takes the "common sense" approach on causation rather than an exclusive dependence on the "but for " test. General considerations are taken such as drawing inferences from established facts, and the assessment of causation factors alleged from the point of material contribution (see March v. E & H Stramare Pty Ltd (1991) 171 CLR 506, see also Bennett v. Minister of Community Welfare (1992) 66 ALJR 550). The availability of evidence which can draw an inference from the facts gives broader opportunity of demonstrating causation.

REMOTENESS: Remoteness in psychiatric damages cases may be argued as applicable if it can be shown that the nature of the damage is too remote from what can be of a reasonably foreseeable kind. This may occur in primary or secondary victim situations. However, remoteness would be difficult to sustain if the foreseeable test is applied in support of the victim.

SUSCEPTIBLE: It may be argued that the nature of the victim's personality within the kind of environment in which he developed could produce a susceptibility to the damage he suffered. However, if we accepted this proposition, it will be appreciated that the kind of relationship which most usually would develop is one where the perpetrator had known, or ought to have known, of any extraordinary susceptibility to psychiatric damage which his conduct could inflame in the victim. It is noted that Deane J. in Jaensch's Case at 610 states that a psychiatric injury sustained by a tort victim:

"...may have been more likely or more severe in(the Plaintiff's) case than in the case of a person of a different disposition does not absolve the defendant of liability in negligence in respect of it".

In Wyld v. Bertram & Coates [1970] SASR 1 at 5,6 Bray CJ in South Australia stated (in part) that "...the man with the fractured eggshell skull not only gets damages for his loss, but full damages, without any discount for his greater potential for injury". His Honour likened this approach in the case of psychiatric weakness with an abnormal susceptibility to psychiatric damage (see Pipikos v. Brown & Sons [1970] SASR 508 at 514-5).

DAMAGES

The damage to a victim can include such features as the loss of enjoyment of life, economic loss, pain and suffering and lack of vocational potential. The age of the victim and the severity and type of the sexual abuse will have a bearing on the damages awarded. The nature and extent of the psychiatric damage caused to the victim is another factor for consideration. This is a matter for psychiatric assessment. There will be other factors depending on the circumstances of the individual case.

However, if it can be shown that the omission of the institution was an intentional act ( in the sense that the institution had knowledge, in the legal sense, about the criminality of the perpetrator or it was reasonably foreseeable by the institution that the perpetrator had paedophilia tendencies), then the nature of the damages which may be relevant in this case could extend to exemplary damages in that the institution was wanton or outrageous with a "contumelious disregard of the Plaintiff's rights" (see Uren v. John Fairfax & Sons (1966) 117 CLR 118; also see Lamb v. Cotogno (1987) 164 CLR 1 at 7,8; Coloca v. BP Australia [1992] 2 VR 441). This would mean a considerable increase in the damages awarded.

However, it is clear that any award for damages will not renew the body or the mind "that has been battered and shattered" (Lord Morris in West v. Shephard [1964] AC 326 at 346).

As a cautionary note, the extent of damages, and how they are to be assessed, are matters which may soon be the subject of legislative change in NSW.

LIMITATIONS TO PROCEED

The normal limitation periods under the Limitation Act, 1969 (NSW) for a "Personal Injury" ( which includes any disease and any impairment of the physical or mental condition of a person (section 11) ) are-

(a) THREE YEARS (3) if accruing after 1 September, 1990 (section 18A), and

(b) SIX YEARS (6) if accruing before 1 September, 1990 (section 14(1)(b)).

There is a Secondary Limitation Period available where the court considers it just and reasonable to do so by extending for a period NOT EXCEEDING 5 YEARS ( sections 60A, 60B & 60C ; for actions accruing on or after 1 September, 1990).

However, there is a further period known as a Discretionary Extension for Latent Injury for causes of action which accrue on or after, or before, the 1 September, 1990. This provision provides an extension of THREE (3) YEARS from the date that the victim became aware of the fact, nature, extent and cause of the latent injury (sections 60F to 60I: Sch.5 cl.4(a) ).

For example, a latent injury of a psychiatric nature may arise as a result of a sexual assault (post-traumatic stress disorder). The victim (or a secondary victim such as a mother as a result of being told of a sexual assault by someone she held in trust with her child) may not become aware of, say, the cause of the symptoms suffered until some later event or counselling triggers it many years after the actual sexual assault.

It is more usual that it is not until the victim receives proper psychiatric counselling that such a person may fully become aware of the fact, nature or extent or cause of the injury suffered. This will be the case despite the fact that the victim knows that he or she has been sexually assaulted. It is just that the symptoms of the "injury" (the fact or it, and its cause, nature and extent) may not be related by the victim to the actual sexual assault. This means that an action for damages may be available to a victim twenty or more years after the date of the actual sexual assault.

The Court may not make an order to extend the time to proceed with a case in the court unless it is satisfied that the victim (section 60 I(a) ):

1. did not know that the injury had been suffered; or

2. was unaware of the nature or extent of the injury; or

3. was unaware of the connection between the injury and the perpetrator's act or omission.

The victim must then commence proceedings in the court within 3 years after the victim became aware (or ought to have become aware) of all three matters listed above (section 60I(b)).

When seeking an order from the Court to extend the limitation period based on the discretionary extension provisions for a latent injury, it will require initial affidavit evidence from the victim and a confirming affidavit from the victim's psychiatrist (if a recognisable psychiatric illness) confirming the date on which the victim became aware, or ought to have become aware, of the matters set out above.

Over recent years there have been a number of cases determined in the Court of Appeal (NSW Supreme Court) and the High Court on the issue discretionary extension. A case on point is James Hardie & Co. V. Wooton (1990) 20 NSWLR 713: Gleeson CJ, Meagher JA, where the provisions of section 60I & clause 4(a) of Schedule 5 of the Limitation Ac, 1969 (NSW), were applied as a basis to relevantly extend the limitation period in the case of a latent injury concerning asbestosis arising from an appeal from the Dust Diseases Board - the only question was to then consider whether it was "just and reasonable".

However, use caution and research the current position as there have been a number of cases reversed in the High Court on this issue (for example, on 28 April, 1992, the NSW Court of Appeal, in Plumb V. Electricity Commission of NSW : MahoneyJA, Handley and Sheller JJA ( 27 NSWLR 364), upheld the decision of the Court of Appeal in Wooton's Case concerning the case on point (involving a latent injury) but disallowed an interpretation which would extend the application of section 60I and Sch.5 of the Act to traumatic or non-latent injuries. On the 4 August, 1992, the High Court rejected special leave to appeal against the decision of the NSW Court of Appeal in Plumb's Case. Further, in the NSW Court of Appeal, the matter of Clark V. Bailey (May or June, 1992), while partially dealing with these issues did not disturb the application of the discretionary extension provisions for latent injuries. On the 16 November, 1994, the High Court in Dedousis V. The Water Board of NSW (Deane, Dawson, Toohey, Gaudron and McHugh JJ: an appeal from a decision reported at [1993] Aust Torts Reports 81-233) considered the application of sections 60G, 60H, 60I and Schedule 5, clause 4 of the Limitations Act 1969 (NSW) and the NSW Court of Appeal decisions in Wootton's Case and Plumb's Case It was held that section 60G was available in relation to a cause of action arising before the commencement of Schedule 5, clause 4; the power of the court in relation to section 60F is not confined to a latent injury (which confirms its application to latent injury) and Wootton's Case is reversed on this point; and for section 60I (a)(iii) the relevant question was whether the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission at the relevant time, and this concerned the plaintiff's ignorance of the existence of these acts and omissions rather than legal conclusions).

The Thirty Year (30) Ultimate Bar was postponed by the 1990 amendments in that the 30 year bar does not apply where an order has been made under the discretionary extension provisions for a latent injury (section 51 (2) ). The application of this provision and the nature of the discretion to be exercised are matters likely to be tested by the courts from time to time.

Finally have an eye for legislative amendment on the Limitations law in the NSW Government's review of personal injury law.

VICTIMS COMPENSATION SCHEME

The Victims Support and Rehabilitation Act 1996 (NSW) provides for an application for compensation to a victim of an "act of violence," such as sexual abuse (section 5 ). Applications can also be lodged in certain circumstances by a secondary victim [one who witnessed the act of violence] (section 15) and by a dependent family member of the primary victim ( section 16 ), provided that the primary victim is eligible to receive compensation (section 22).

The "act of violence" means an act or a series of acts committed on the victim that (section 5)::

* has apparently occurred in the course of the commission of an offence, and

* has involved violent conduct against a person or persons, and

* has resulted in injury or death to one or more persons.

(Note: A series of related acts of violence may be treated as one single act for the purpose of compensation (section 5 (3). On the other hand a case may exist for a series of of acts of violence to be treated as separate incidents for the purpose of separate applications for compensation.)

The maximum compensation payable is $50,000 for an act of violence (section 19 ), which is assessed on a prescribed Schedule of Compensatable Injuries (section 17 ). Separate claims can be made for Financial Loss to a maximum of $10,000 [based on actual expenses, loss of earnings and loss of personal effects]. A levy can be imposed to repay compensation by the perpetrator (section 3( c) ).

The time to lodge an application is within two (2) years of the act of violence (section 26 (1) ). There is a discretion for the acceptance of out of time applications where "leave should be given in cases of sexual assault .. or child abuse" (section 26 (3) (b) ). For example in the case of latent injuries in the matter of a mental illness claim arising from post traumatic stress disorder.

The applications are initially dealt with by a Compensation Assessor . An appeal exists from a determination of a Compensation Assessor to the Victims Compensation Tribunal within three (3) months after notice is duly served of the determination by the Assessor (section 36 ). An appeal on a question of law or on whether a series of acts of violence constitutes one act exists from the Tribunal to the District Court (by leave) within three (3) months after notice of determination of the Tribunal is duly served on the applicant.

A FEW SUGGESTIONS

In a general context, a victim of sexual abuse as a minor is a person who is likely to suffer a psychiatric illness whether or not that person is aware of such an illness. It may also be a case where the relationship between the actual act of abuse and the illness itself is not immediately apparent to the victim. Of course, the conduct itself is an offence without limitations under the Crimes Act.

Therefore, a general guideline for a solicitor to follow (each case would of course rely on its own individual circumstances) may be-

1. Report the sexual abuse to the Police authorities, the organisation with which the perpetrator is a member (there may be other potential victims at risk) and as required by law.

2. Arrange for the victim to be counselled and, if necessary treated, by a consultant Psychiatrist specialised in this field. In many cases the victim will be already under some form of counselling. The usual kind of psychiatric illness suffered is post traumatic stress disorder and suicidal attempts are often experienced in some of the worst cases.

3. Collect all available information about the perpetrator, his manner of approach, any other young boys he may have come into contact with in a suspicious way (whom may by now be adults), and the Religious Order or organisation to which the perpetrator is a member.

4 Consider the Lodgement of an application (s) to the Victims Compensation Tribunal for each separate act of violence (a secondary victim claim may also be warranted, for example, in the case of a mother).

5. If appropriate, obtain advice and start preparing the grounds for a common law action, and examine and investigate in more detail such questions as the proper defendant, issues of liability and the manner of pleadings sufficient in matters of this kind.

It will also be appreciated that considerable patience is required when taking a statement from a victim who may be reticent to reveal some of the most traumatic personal details or simply overwhelmed by recalling the incidents which have caused the hurt inside them or because of the passing of time or, as a result of the abuse, the victim may be dysfunctional in behaviour. The final statement may take a number of interview sessions. Even after a statement is seemingly completed, there may be additional details and facts later remembered. All the details do not usually come out at once.

Sex abuse is a grave criminal offence. this means that particular care should be taken to establish the accuracy of the evidence. There is no easy way. For example, every detail of the actual abuse will need to be known as to the usual, when, where, how, in what circumstances and the mannerisms of the perpetrator. The when may require it to be matched with a peripheral contemporaneous event. It is important to establish whether or not a complaint had been made to a person of authority, or comment to any person, at the time, and whether this can be verified. If not, then confirm why not.

It is not unusual that the perpetrator in one sexual abuse case unfolds other victims (see comments by Professor McConaghy above in this Paper). This will mean that the statement taken from the original victim may disclose other victims who may seek assistance and bear witness against the perpetrator and the particular organisation involved. It may also be the basis for a "representative" or class action.

A SAFE SYSTEM

The following measures were proposed a decade ago in the original Paper. It is important to recognise that paedophilia is a serious crime at law. It has the capacity to damage permanently the mental health of the victim and his family. Further, the damage to the Faith of the victim and his family is often irreparable as the credibility in the authority of the Church collapses. To disregard this is to ignore the law of Man and God.

There are preventative measures that can be taken to avoid the grave sufferings caused to the victims and their families from sexual abuse. This also applies to the rehabilitation of the paedophile. It is not possible to provide a blanket approach on the question of devising a "safe system" of operations that would generally apply to remove the risk of liability on a religious institution. Each, it may be possible to substantially mitigate or, in some cases eliminate, the extent of liability that flows from the damage caused by a sexual abuse - if carefully developed procedures and approaches are introduced into the institution.

There are four basic directions which need to be addressed. They concern the paedophile, the protection of the victim, the training of prospective members of religious organisations prior to the point of entry and the education of the priests and religious (including school education, the parents or guardians of the children and the laity generally).

First, the profile of the paedophile is one which indicates that he is likely to have paedophilia tendencies at the point of entry into the institution. Alternatively, it may be a factor which becomes more pronounced by the manner and nature of his conduct as a member of the institution. Other considerations devolve on the proper approach to be taken on the discovery either;

(a) that a member has a predisposition to paedophilia, or

(b) that a member has offended as a paedophile.

Most institutions are simply not equipped with the knowledge or techniques necessary to deal with any of the situations suggested above. It means that psychiatric professional advice and assistance (and in some other professional areas, such as legal input) will be required from outside the institution.

Secondly, the protection of the likely victim needs to identify the kinds of victims which are at risk. In broad foreseeable terms, it is any young person who can reasonably come into contact with the paedophile inside or outside the institutional activity. This is a very wide ambit and it therefore places a higher degree of responsibility on the "managers" of the members of the institution. However, it may help to clarify an area where the institutional paedophile is more likely to offend. This is within the school environment. Some Institutions run day and boarder school arrangements for students, which provide a clear opportunity for the paedophile to become active within the arms of authority, faith and fidelity.

The kind of system which should be considered at the outset can be first understood from the nature of the pleadings in actions for compensatory damages (to attempt a cover up of a known offender will most probably lead to exemplary damages, not to mention the risk of criminal prosecution of the institutional members responsible for the cover up), for example-

Failing to ascertain that the member was a paedophile / failing to have in place a system of supervision whereby the member would have been prevented from inflicting his paedophilia on students / failing to provide counselling or pastoral care such that the misconduct towards a student would have been prevented or caused to be discontinued / failing to exercise adequate discipline over the member against paedophilia misconduct by him/ failing to educate the member against paedophilia disciplined, educated and warned against paedophilia misconduct affecting students / failing to implement adequate controls so as to detect the existence of members who were inappropriate to deal with students and who are likely to engage in sexual assaults / failure to provide proper sexual education for students about sexual assault and molestation/ failure to warn students that if they are sexually molested that they should complain about it / and failing to provide a proper avenue by which, in the event of a student being molested, the student could express a complaint and the misbehaviour stopped.

This will mean much greater supervisory control over the members of religious institutions, a better report back system being introduced on the activities and performance of such members and a much more professional assessment of prospective members at the point of entry. The professionalism required will not be readily available within the current resources of the Church.

There needs also to be set in place appropriate guide-lines for dealing with complaints in a fair, impartial and open manner. It would help, although not essential, if the complaint was dealt with by an independent professional not having any association (business, religious or otherwise) with the institution. Certainly, if the complaint is dealt with by a member of the institution, it should be a member of the most senior standing.

It is also important that once it is reasonably suspected that a paedophile offence has been committed a clear expeditious line of action should be determined. This will require reporting and notification procedures which will involve public authorities and the victim and his parents.

A greater emphasises should be placed on impartiality in offering counselling or other services to the victim and his family, together with other steps which will immediately mitigate the offence. It will be appreciated that an option does not exist to cover up or in any way delay to act once the incident arises by notice (of a real or constructive kind) through any avenue or person.

On the general question of counselling, whether it be the victim and his family or the paedophile member, it is suggested that this be carried out by appropriate professionals outside the institution (or

in the case of the victim or his family any other like institutions of the same religious persuasion). This is important if the offered clinical counselling is to be seen as impartial and professional in nature. In any case, it is more likely the situation that most religious institutions simply do not have the kind of appropriate professional services required for proper counselling in the circumstances.

Thirdly, the seminaries and training institutions for prospective members of the priesthood or religious in various Orders should include detailed awareness programs, together with on-going awareness sessions for existing members at all levels of authority.

Fourthly, children in religious schools (with appropriate instruction from kindergarten to high school) and the Laity or religious community should be given relevant awareness programs and also informed of the complaint procedures which the religious organisation has introduced at Parish, school and community levels generally.

Essentially, the religious institutions must open the doors so defensively closed if they are to survive this critical challenge to their credibility, authority and apostlehood.

Finally, the four pronged approach in developing a safe system will need to be established having regard to the nature of the institution and its operations. This paper merely alerts the institution to the areas of liability it may face, and at the same time it will lessen the incidence of sexual abuse occurring in religious institutions and provide a more just method of dealing with these grave issues.

THE AMERICAN BISHOPS' NORMS

The 12 point proposals below state similar principles as those determined by the Conference of American Catholic Bishops in Dallas on 15 June, last. The new "Norms" were carried by 239 to 13 votes. These American "Norms" have now been sent to the Vatican for recognitio.

This will then set the standard for the Catholic Church throughout the Western World.

The American Norms proclaimed (the complete version can be accessed on the internet):

* the establishment of a Review Board and an Appellant Review Board in each jurisdiction of the Church - comprised of a "majority" who "will be lay persons not employed" by the Church [C5 & C6 ];

* the Board can "act both retrospectively and prospectively" [A ]

* the Bishops "will work with parents, civil authorities, educators and various community organizations" [A ]

* Any credible allegation shall result in the priest or religious being "relieved of any ecclesiastical ministry or function" [C7 ]

* The Church "will report to the public authorities any allegation".

The most radical development contained in the Norms is the issue of transparent power sharing and direct involvement of the Laity in the governance of the Catholic Church. It is a clear ice-breaking message for the future renewal in all areas of the Church. It brings the Church back to its original grass roots, while also properly preparing it for the challenges of the new Millennium.

PROPOSALS FOR REFORM

The following 12 point proposals were recently put in an Open Letter to the Australian Catholic Bishops. They emphasis a rigorous compliance regime, absolute transparency and sharing the development of policies and the implementation of programs with the Laity. These proposals are consistent with the principles determined in the American Bishops Norms on 15 June, 2002. It is this matter where there is an urgent need to take positive structural and policy initiatives. I recommend urgent consideration of the following proposals:

1. Establish a centrally administered National Compliance Agency (NCA). Its purpose will be to ensure compliance of all aspects of the Protocol. It will not work unless the appointed executive administrator is committed to the task, the Agency is appropriately resourced and transparent, and that it is clothed with sufficient high authority to perform its duty. Each jurisdictional area should appoint a compliance operative to co-ordinate with the NCA.

2. Establish an NCA committee and local complementary jurisdictional committees with membership from the Laity.

3. Establish a Grievance Panel in each major jurisdictional area which includes membership from the Laity. Such a panel will maintain confidentiality (subject to complainants), arrange for internal interviews within the Church and referrals to government authorities, as appropriate. It shall report the nature, type, areas and incidents of grievances to the NCA on a regular basis (maintaining strict confidentiality as the parties involved - unless released to do otherwise). If evidence of a criminal offence is forthcoming, the Panel will immediately refer the matter to the appropriate government authority (it is not the province of the Church to determine criminality). The Panel shall act impartially.

4. There should be a National Protocol which provides for a uniform approach throughout the Church in Australia (while having regard to any particular obligation provided in differing State legislative requirements).

5. The Protocol should provide that the Church shall not harbour or transfer or otherwise keep secret the whereabouts of a known sex abuser, whether that person is an employee or religious.

6. The Protocol should provide that the Church shall make available to the appropriate government authority its knowledge and records of all known sex abusers.

7. The Protocol should provide that when it is known that a Religious has been guilty by admission or otherwise, that person should be handed up to the appropriate government authorities.

8. The Church develop a liaison with all reasonable associations of the Laity with a genuine concern for sexual abuse within the Church.

9. While the Church has a civil right to defend itself against any actions by persons claiming damages for sexual abuse, it should determine a publicly known proper or nominal defendant (or defendants in the case of various religious orders or jurisdictions ). It strips the claim that the Church hides behind a veil of secrecy to avoid civil actions.

10. While non-disclosure clauses are most usual in Deeds of Release following a claim (before or in the process of litigation) as a term of settlement of an action, the Church would better advised in the current climate to limit the non-disclosure to the amount of the settlement. This is not then a "hush" provision, in the sense that it has been publicly referred, and it is defensible on the grounds that all actions are individual in nature and effect. This permits disclosure of the grounds of the action in a civil sense. Non-disclosure of a criminal act is not an option (indeed, it would be a criminal act to intentionally be an assessory after the fact or aid or abet a crime).

11. Review the counselling services of the Church. They can leave the Church open to claims of a conflict of interest in certain circumstances. Further, there is always the problem of a lack of informed participation on the part of the possible victims and their families in the internal counselling services offered to them by the Church. This is more particularly the case where there is a possibility of civil actions against the Church.

12. Educate the Priests and Religious (from priest to bishop, member to superior) in an on-going program about the issues of sexual abuse. It is not just the aspect of compassion and duty, but also civil liability, criminality and simple cost factors. But essentially, it really is about the ultimate creditability of the Church - and what it espouses.

IN CONCLUSION

The expectations of the Australian community as we face the 21st Century are accountability, transparency and involvement. Our citizens are better educated and have enormous worldwide communication access on every matter. It is in this environment that the Religious Institutions exist. It is why the Amercian Bishops now recognise transparent power sharing and direct involvement of the Laity in the governance of the American Catholic Church. These are the principles that are clearly the best protection against the errors of the past.

GEOFF CAHILL, SOLICITOR & ATTORNEY 12 July, 2002


And here's yet another take on the crisis.

Tough Calls for Church Hierarchy

Jack W. Florence, Sr.

After nearly a year of hand wringing, of debate over charter and norms, statute of limitations, Church law vs. civil law, and fairness to those involved, what exactly was accomplished? New rules dealing with sex abuse by our priests, which may provide a measure of justice for the victims and their families

So now, with the dust settled, what we see is a Church policy for dealing with priests AFTER they have abused a child! The argument seems to be that the threat of exposure and punishment will stifle such abhorrent activity. But society has always exposed and punished its miscreants and still there is no shortage of criminal activity, reduced perhaps but always with us. Unfortunately nowhere in sight is there a plan for effective steps to prevent further child abuse.

The United States Conference of Catholic Bishops (USCCB) announced the hiring of Katherine McChesney the number three cop in the FBI, to take a newly created job at the USCCB. McChesney will serve as director of The Office for Child and Youth Protection. Now we are condemned to contemplate a church that has an office to protect our children and grandchildren from its own clergy. How am I to teach the young to love and respect their clergy while explaining the function of Ms. McChesney?

Our bishops seemed to be concerned only with zero tolerance. I would prefer they search for zero occurrence. A difficult goal? Yes. Impossible? Probably, but no lesser goal is to be expected from the Church. With no cure in place, all of the immense effort of the hierarchy over the past eleven months, all of the hours we've spent agonizing over the issues, all will be relegated to a footnote in Church history -- of concern only to historians.

What should the Church do next? One conclusion we can draw from the Boston See Party and similar events around the country is that the Church will not heal herself. The press, the legal system and the laity together forced the Church to enact reform in 2002. We cannot expect the Church, on its own initiative, to move to the next step, prevention of those terrible deeds. The next step will happen only if demanded by the laity. Like it or not, the ball is in our court.

Allowing priests to marry is often offered as a cure, and it appears as if the laity is ready to accept a married clergy. But nowhere near enough discourse has been given to this radical idea. If the Church were to make celibacy optional, the priesthood would be divided into two classes, married and unmarried. Many of the unmarried priests would be gay but not all. The laity however would not (indeed could not) make such a distinction and all celibate clergy would be deemed gay. If a religious order, i.e. the Jesuits or Franciscans etc. wished for any number of reasons to stay celibate, they would shortly be labeled the gay order by the laity. The ability of the celibate priest to carry out his parish ministry would be compromised by parishioner concern over his sexuality. Such distinctions and distractions would shatter the unity created and nurtured within the Church for over two thousand years. It is not certain the Church could survive such a calamity.

The only answer may well be a celibate optional clergy that includes ordained women. Yet the ordination of women is an issue so disdained by the Church that she forbids us to even talk about it.

It is reasonable to conclude that the Church has neither the desire nor the courage to face the difficult decisions it must make. But at last the laity is beginning to stir. At last the people in the pews are beginning to question. I find solace in that development, and the only hopeful sign in an otherwise hopeless mess.

Jack W. Florence Sr. is a grape grower/wine producer in the premium California wine industry. He served on the founding boards of two wine industry organizations, created, with subsequent approval of a federal regulatory agency, Sonoma County's newest wine appellation, and has written two books dealing with the history of the California wine industry. He has served many lay positions in the Church including work with a small lay/clerical committee to bring a pastoral committee to his diocese.

 

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